Several weeks ago, the Supreme Court upheld a lower court’s order preventing a Texas social media law from going into effect. The Texas law, which prevents large social media platforms from removing posts based on the views that they express, would have stopped Twitter from banning former President Trump from its platform in the wake of Trump’s tweets about the Jan. 6, 2021, Capitol attack. At least until the Supreme Court squarely addresses the merits of the Texas law, social media platforms will retain the right to censor comments and even ban users.
Whether large companies should be able to censor content is an issue of major importance, as many of our day-to-day social interactions occur on these platforms. Yet an equally pressing issue, and one that has received much less media attention, is whether and to what extent people who hold public office – especially the more than 500,000 state and local elected officials – can censor users who interact with the public official’s social media page.
Few of us can name our state and local representatives, but state and local government decisions impact our daily lives to a greater extent than national-level policy. School boards, and not the federal government, are primarily responsible for K-12 education policy. State and local elected leaders make decisions about COVID-19 regulations, welfare benefits, housing, gun control and the bulk of criminal justice issues, among many others.
It is troubling, then, that state and local officials often censor users’ comments, or block them from engaging with their social media pages altogether, thereby cutting off their constituents from political engagement. Unlike the private companies that host the platforms on which public officials post their content, public officials must conform their conduct to the First Amendment’s mandate of free and open expression.
Federal courts have coalesced behind the theory that social media platforms should be considered “limited public forums” for First Amendment purposes. Whereas the government cannot impose content restrictions on speech in “traditional public forums” – spaces like sidewalks and parks that have a historical pedigree of being open to the public for speech and expressive conduct – the government can limit the topics available for discussion in limited public forums.
But like traditional public forums (and all public property), it may not censor one’s viewpoints on an otherwise permissible topic. So, if you can talk about football, you can’t keep the Patriots fans from joining the discussion.
From court decisions thus far (including those from the Second, Fourth and Eighth Circuit Courts of Appeals) we can discern at least a few significant indicia for determining whether a public official’s social media page constitutes a limited public forum or is merely the official’s personal page. We should look at whether the page is “draped with the trappings of office,” such as a government seal or official contact information; whether the official uses it to announce government policy; and most importantly, whether the official uses the platform to engage with citizens on policy matters.
On the other hand, if the official uses the page only to interact with friends and family, and if it lacks policy related information and references to official duties, a court would almost certainly find the page to be private.
Though helpful, these contours are broad, and the scale of the issue (500,000 plus accounts) is daunting. We must therefore take steps as a society to ensure that everyone has access to their local politicians and source of policy information and reduce pervasive First Amendment violations.
First, we need to increase constitutional literacy about proper online behavior for public officials. Now that social media has created a ubiquitous albeit intangible space for self-expression, a working knowledge of the Constitution’s strictures for online behavior is a must for all public officials — from local school board members to senior federal officers.
Second, constituents should discourage their officials from using social media pages in a hybrid public-private manner. Hybrid social media use makes it difficult for courts to decide whether a page is a limited public forum or a private page.
State and federal laws could help; a law might, for example, require that any official’s public page be designated as “public” or “for official purposes” on the social media website. That could be a weighty indicator for courts to consider in determining whether a page is a limited public forum, though such a designation does not necessarily prevent an official from using a nominally private page to inappropriately advance a policy agenda.
But the best approach would be for the public to start holding their officials accountable when they use purportedly private social media pages for public purposes.
Applying our centuries-old Constitution to our modern, technological world is difficult (something that law students learn in their first year), but it is worth the effort. Though legislatures and courts have begun to grapple with the growing importance of social media as a medium for public debate, there is room – and a significant need – for the public itself to engage with these First Amendment questions and to police unconstitutional conduct.
Ultimately, the electors, not the elected, are best positioned to ensure that government leaders do not selectively exclude certain voices from the online public square.
Sarah Ludington is a clinical professor of law and the director of the First Amendment Clinic at Duke University School of Law. Christian I. Bale is a lawyer in Wilmington, Del. Lauren Smith is a lawyer in Washington, D.C.